Attorney-Client Privilege Update: Speak Freely in Pennsylvania

February 25, 2011
by SUZANNE ILENE SCHILLER
MGKF Special Alert

The recent history of the attorney-client privilege in Pennsylvania has been one of confusion and fear - confusion as to what communications were protected by the privilege, and fear that advice given by attorneys to their clients would not be subject to its protections. However, those days are now largely in the past.

BACKGROUND

Pennsylvania's attorney-client privilege is codified at 42 Pa.C.S. Section 5928, which provides:

In a civil matter counsel shall not be competent or permitted to testify to confidential communications made to him by his client, nor shall the client be compelled to disclose the same, unless in either case this privilege is waived upon the trial by the client.

Notably, the statutory protection appears to apply only to communications from a client to counsel, but not the reverse. This reading appeared confirmed when, in 2007, the Pennsylvania Superior Court strictly construed this language, and held that the "attorney-client privilege protects from disclosure only those communications made by a client to his or her attorney which are confidential and made in connection with the providing of legal services or advice." Nationwide Mutual Insurance Company v. Fleming, 2007 PA Super 145 (Pa. Super. Ct. 2007). Because of changes in the composition of the Pennsylvania Supreme Court, the decision was affirmed on other grounds by an equally divided court, so Fleming was essentially left intact.

Fleming lead to a series of court decisions strictly applying section 5928. For example, Judge Manfredi of the Philadelphia Court of Common Pleas, held that "[a]ttorney-client privilege is perhaps a misnomer [in Pennsylvania], since only the client's statements enjoy a privilege. Communications of the attorney, on the other hand, are not privileged, except to the narrow extent to which they reveal communications made by the client." Kennedy v. Yamaha Motor Corp., 2010 Phila. Ct. Com. Pl. LEXIS 24 (2010). Similarly, Judge Bernstein ruled that the attorney-client privilege "covers only factual communications from a client to her attorney. It is extended to communications from an attorney to a client only if, and only to the extent that, those communications from the attorney reveal the client's confidential factual communications." Kolar v. Preferred Unlimited, Inc., 14 Pa. D. & C. 5th 166 (2010).

These decisions cast a silent pall over the legal landscape as attorneys became fearful that their every letter and email to their clients could be revealed in the course of subsequent litigation, and that they themselves could be deposed and required to disclose even their oral communications with their clients. It was, to almost all attorneys, an intolerable situation and one that was fundamentally contrary to the notion of confidentiality that has always been a hallmark of attorney-client relationships and counseling.

The Gillard Decision

The problems created by Fleming did not go unnoticed by the Pennsylvania Supreme Court. Thus, in 2010, it heard arguments in the case of Gillard v. AIG Insurance, 947 A. 2d 836 (Pa. Super. 2008). Specifically, the Court accepted the appeal to decide the fundamental issue of whether the attorney-client privilege applies to communications from the attorney to the client. The issue was of such importance that the Association of Corporate Counsel, the Pennsylvania Bar Association, the Philadelphia Bar Association, the American Insurance Association, and the Energy Association of Pennsylvania filed amicus briefs in support of overturning the rule announced in Fleming.

On February 23, 2011, the Pennsylvania Supreme Court handed down its decision. The Court looked at the common law development of the privilege, the legislative history of Section 5928, and reflected on its own responsibility for rulemaking authority governing the practice, procedure and conduct of the courts. And, having done so, concluded that the narrow protection set forth in Fleming could not stand: "it is our own considered judgment ... that - if open communication is to be facilitated - a broader range of ... protection is implicated." Gillard v. AIG Insurance, No. 10 EAP 2010, slip op. at 20 (Feb. 23, 2010). Acknowledging the fact that the legal profession and those who seek its assistance needed certainty and guidance, the Court firmly held that "in Pennsylvania, the attorney-client privilege operates in a two-way fashion to protect confidential client-to-attorney or attorney-to-client communications made for the purpose of obtaining or providing professional legal advice." Id. at 23. In summary, Gillard confirms attorneys can provide, in confidence, competent, honest, legal advice, thereby fulfilling their more important roles as counselors and advisors.

If you have questions regarding either the Fleming or the Gillard decisions, please contact Suzanne Schiller (sschiller@mgkflaw.com) at 484-430-2354.